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488 F.Supp. 665 United States
District Court for the District of
Columbia Civil Action No.
78-1477 Filed March 11 1980 Isabel Morel De
Letelier, et al v. The Republic of
Chile, et al, Defendants Joyce Hens Green, United States District Judge Presently before the Court is the question of
its subject matter jurisdiction to entertain this action against defendant
Republic of Chile. Despite the previous entry of a default against that foreign
state that plaintiffs argue precludes further judicial scrutiny of this issue,
the Court nonetheless is persuaded that the jurisdictional question must now be
given careful consideration, and, having examined the relevant congressional
enactment, the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330,
1602-1611 (1976), is convinced that such jurisdiction does indeed exist,
entitling plaintiffs to proceed to seek a judgment against the Chilean
Republic. Filed in August 1978 by Isabel, Christian, Jose,
Francisco, and Juan Pablo Letelier, and Michael Maggio, respectively the widow,
sons, and personal representative of Orlando Letelier, as well as by Michael
Moffitt and Murray and Hilda Karpen, respectively the widower-personal
representative and parents of Ronni Karpen Moffitt, the complaint herein, as
amended, seeks recompense for tortious injuries connected with the deaths of
both former Chilean ambassador and foreign minister Orlando Letelier and Ronni
Moffitt in the District of Columbia on September 21, 1976, when Letelier's car,
in which they were riding to work with Michael Moffitt, was destroyed by an
explosive device. Plaintiffs allege that the bomb was constructed,
planted, and detonated by defendants Michael Vernon Townley, Alvin Ross Diaz,
Virgilio Paz Romero, Jose Dionisio Suarez Esquivel, Guillermo Novo Sampol, and
Ignacio Novo Sampol, acting in concert and purportedly at the direction and
with the aid of defendants Republic of Chile, its intelligence organ the Centro
Nacional de Intelligencia (CNI) (formerly Direccion de Intelligencia Nacional,
a/k/a {488 F.Supp. 665, 666} DINA), and supposed CNI-DINA agents and officers
Pedro Espinoza Bravo, Juan Manuel Contreras Sepulveda, and Armando Fernandez
Larios. 1 In accord with their allegations and acting
pursuant to the provisions of the District of Columbia Code governing survival
of actions, D.C.Code § 12-101 (1973), and wrongful death, id. § 16-2701 (Supp.
V 1978), plaintiffs have set forth the following five causes of action that
they contend give rise to civil liability on the part of the defendants: 1)
Conspiracy to deprive Orlando Letelier and Ronni Moffitt of their
constitutional rights, including equal protection of the law, and freedom of
speech, press, association, and petition, in violation of 42 U.S.C. § 1985
(1976). Amended Complaint ¶ 7. 2)
Assault and battery causing the deaths of Orlando Letelier and Ronni
Moffitt. Id. ¶ 9. 3)
Negligent transportation and detonation of explosives. Id. ¶ 11. 4)
Assassination of Orlando Letelier and Ronni Moffitt in violation of
international law. Id. ¶ 13. 5)
Assault upon Orlando Letelier, an internationally protected person
pursuant to 18 U.S.C. § 112 (1976), that was the proximate result of his death
and the death of Ronni Moffitt. Id. ¶ 15. Following service upon defendants Michael Vernon
Townley, Alvin Ross Diaz, Ignacio Novo Sampol, and Guillermo Novo Sampol, and
the failure of these defendants to answer, defaults were entered against them
in late August 1978. Plaintiffs have been unable to obtain service upon
Virgilio Paz Romero and Jose Dionisio Suarez Esquivel. Service was attempted
upon Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, and Armando
Fernandez Larios by registered mail to Chile and the return receipts were filed
with the Court in September 1978. Subsequently, in August 1979 service was
again attempted upon these three individuals in Chile pursuant to Federal Rule
of Civil Procedure 4(i) by means of letters of request, signed by the Court,
but proof of the completion of such service has not yet been forthcoming. As to the Republic of Chile and CNI, pursuant to
the terms of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §
1608(a)(4), two copies of the summons and amended complaint were dispatched by
the Clerk of the Court to the United States Department of State on October 24,
1978. One of these copies, along with an explanatory diplomatic note, was
delivered by the State Department to the Ministry of Foreign Affairs of the
Republic of Chile in Santiago on November 17, 1978. On February 9, 1979, the Clerk of the Court was
notified by letter from the Department of State that the Chilean Foreign
Affairs Ministry, by a diplomatic note dated January {488 F.Supp. 665, 667} 16,
1979, had requested that the copy of the summons and amended complaint be
returned to the Court. In the note, the Ministry of Foreign Affairs made it
clear that CNI was not a separate legal entity but only an organ of the Chilean
government and that the Republic of Chile would not acquiesce in the jurisdiction
of this Court over the subject matter of this suit. On May 2, 1979, following the plaintiffs' filing
that same day of a motion, with supporting memorandum of law, seeking the entry
of a default against the Republic of Chile, the Honorable John H. Pratt held a
hearing on that request. The next day an order was filed entering a default
against the Republic of Chile. On June 27, 1979, this action, along with other
cases, was randomly reassigned to this judge as a new member of the Court. A
hearing memorandum on plaintiffs' right to relief against all defendants was
filed on August 17, 1979, but on September 4, 1979, prior to the scheduling of
a hearing at which the plaintiffs would be allowed to make their required
evidentiary showing in order to obtain the entry of a default judgment, 28
U.S.C. § 1608(e) (1976), 2 the
Department of State sent to the Clerk of the Court, at the request of the
Republic of Chile, a copy of Embassy Note No. 180, dated August 14, 1979, and
an accompanying memorandum of law in which the Chilean Republic reiterated its
belief that the Court lacks subject matter jurisdiction. On September 13, 1979, plaintiffs moved,
pursuant to Federal Rule of Civil Procedure 11, to strike the note because it
was a pleading not signed by counsel. By order filed October 11, 1979, the
Court denied plaintiffs' motion in that the note and the accompanying
memorandum were not a "pleading" but instead could be considered a "suggestion"
under Rule 12(h)(3) that the Court lacks subject matter jurisdiction. Further,
the Court asked plaintiffs to submit a memorandum of law concerning that
question as well as the effect of Judge Pratt's entry of a default upon this
Court's ability to consider that issue. Such a memorandum has been filed. Although it is firmly established that subject
matter jurisdiction cannot be conferred upon a court by consent of the parties
involved, whether that consent is by affirmation or acquiescence of the
defendant, and that the issue of subject matter jurisdiction can be raised by
the court sua sponte at any time, 1 Moore's Federal Practice ¶ 0.60(4), at
624-28 (2d ed. 1979); 13 C. Wright, A. Miller & E. Cooper, Federal Practice
and Procedure § 3522, at 46-48 (1975), plaintiffs nevertheless argue that the
entry of a default by Judge Pratt after their submission of a memorandum
dealing with subject matter jurisdiction and a hearing at which the issue could
have been raised should preclude the Court from further considering the issue.
According to plaintiffs, two different considerations
require this result. Citing DiFrischia v. New York Central Railroad, 279 F.2d
141 (3d Cir. 1960), they first contend that the Court should not allow the
government of Chile to "play fast and loose" with the judicial machinery by
allowing it to resurrect a question that already has been decided. In addition,
they assert that the doctrine of "law of the case" precludes this judge from
further consideration of the matter. In DiFrischia, the United States Court of
Appeals for the Third Circuit, expressing its unwillingness to allow a party to
"play fast and loose with the judicial machinery and deceive the Courts,"
refused to allow a defendant who had stipulated to the existence of diversity
jurisdiction to move two years later to dismiss for want of such jurisdiction.
279 F.2d at 144. Although the Court must concede that the actions
of the Chilean government in refusing {488 F.Supp. 665, 668} to enter a formal
appearance through counsel despite the existence of statutory provisions
allowing a special appearance, 28 U.S.C. § 1330(e) (1976), or to communicate
with the Court other than by diplomatic notes relayed through the State
Department, is not in conformance with what would be considered the preferred
procedure for raising the jurisdictional question it seeks to have decided, it
is clear that the decision of the Third Circuit in DiFrischia, the rationale of
which has not been widely followed, see Eisler v. Stritzler, 535 F.2d 148,
151-52 & n.2 (1st Cir. 1976), is without applicability here since the government
of Chile, despite its unorthodox presentation of its views, has maintained
consistently that this Court lacks subject matter jurisdiction. As to the application of the doctrine of "law of
the case" in this instance, no less a jurist than Mr. Justice Holmes has stated
the rule as being that "(in) the absence of statute the phrase, 'law of the
case', as applied to the effect of previous orders on the later action of the
court rendering them in the same case, merely expresses the practice of courts
generally to refuse to reopen what has been decided, not a limit to their
power." Messenger v. Anderson, 225 U.S. 436, 444 (1912), quoted in Van Voorhis
v. District of Columbia, 240 F.Supp. 822, 824 (D.D.C. 1965); accord, Naples v.
United States, 359 F.2d 276, 277 n.1 (D.C. Cir. 1966) (per curiam); United
States v. Fuller, 277 F.Supp. 97, 99 (D.D.C. 1967). While the benefits of adherence to the doctrine
of law of the case are obvious, both in terms of judicial economy and as a
means of avoiding unnecessary uncertainty for the parties involved, nonetheless
the Court finds the existence of special factors here which make it necessary
that the issue of subject matter jurisdiction be thoroughly considered by this
Court. Although Judge Pratt's entry of a default could be considered an
implicit recognition that the courts of the United States do have subject
matter jurisdiction over the Republic of Chile in this action, the nature of
this litigation, it apparently being the first instance in which redress for tortious
injuries such as are alleged here has been sought under the Foreign Sovereign
Immunities Act, as well as the potential diplomatic impact of any action by the
Court, makes it necessary that the question of jurisdiction be fully and
sensitively explored on the record. Turning then to that task, it is necessary to
focus upon the provisions of the Foreign Sovereign Immunities Act, which, like
all other statutory enactments regulating the subject matter jurisdiction of
the federal district courts, delimits the boundaries within which the
jurisdictional power of this Court can be exercised. 3 See, e.g., Owen Equipment &
Erection Co. v. Kroger, 437 U.S. 365, 372 (1978); Aldinger v. Howard, 427 U.S.
1, 15 (1976). Because of the manner in which the Act is structured, several of
its provisions, all found in title 28 of the United States Code, impact upon
the question of the Court's jurisdiction. Among those are the following: § 1330.
Actions against foreign states (a)
The district courts shall have original jurisdiction without regard to
amount in controversy of any nonjury civil action against a foreign state ...
as to any claim for relief in personam with respect to which the foreign state
is not {488 F.Supp. 665, 669} entitled to immunity either under sections
1605-1607 of this title or under any applicable international agreement. § 1602.
Findings and declaration of purpose The Congress finds that the determination by
United States courts of the claims of foreign states to immunity from the jurisdiction
of such courts would serve the interests of justice and would protect the
rights of both foreign states and litigants in United States courts. Under
international law, states are not immune from the jurisdiction of foreign
courts insofar as their commercial activities are concerned, and their
commercial property may be levied upon for the satisfaction of judgments
rendered against them in connection with their commercial activities. Claims of
foreign states to immunity should henceforth be decided by courts of the United
States and of the States in conformity with the principles set forth in this
chapter. § 1604.
Immunity of a foreign state from jurisdiction Subject to existing international agreements to
which the United States is a party at the time of enactment of this Act a
foreign state shall be immune from the jurisdiction of the courts of the United
States and of the States except as provided in sections 1605 to 1607 of this
chapter. § 1605.
General exceptions to the jurisdictional immunity of a foreign state (a)
A foreign state shall not be immune from the jurisdiction of courts of
the United States or of the States in any case – * * * (5)
not otherwise encompassed in paragraph (2) above [which denies immunity
for a foreign state's commercial activities] in which money damages are sought
against a foreign state for personal injury or death, or damage to or loss of
property, occurring in the United States and caused by the tortious act or
omission of that foreign state or of any official or employee of that foreign
state while acting within the scope of his office or employment; except this
paragraph shall not apply to – (A)
any claim based upon the exercise or performance or the failure to
exercise or perform a discretionary function regardless of whether the
discretion be abused, or (B)
any claim arising out of malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract rights. 28 U.S.C. §§ 1330(a), 1602, 1604, 1605(a)(5)
(1976). As a reading of these sections reveals, the Act
very broadly confers original jurisdiction upon federal district courts to hear
any nonjury civil action against a foreign state, thereby encompassing the
action plaintiffs now seek to prosecute against the Republic of Chile. The
matter does not end there, however, for this jurisdictional grant is qualified
in that it has been made subject to any proper interposition of the defense of
sovereign immunity, a defense upon which the defendant places its greatest
reliance. 4 {488 F.Supp. 665, 670} As a doctrine of international law requiring
that, under the proper circumstances, a domestic court will relinquish
jurisdiction over a foreign state, sovereign immunity first was recognized in
American law in the early nineteenth century by Chief Justice Marshall in The
Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812), in which a
foreign entity's plea of immunity, as supported by the executive branch, was
found to be valid as within the general law and practice of nations. By this century, however, the judicial reliance
upon general principles of international law to decide questions involving
sovereign immunity began to give way to a deference to the practices and
policies of the Department of State, as articulate in the suggestions of
immunity presented to the courts by the department. See, e.g., Mexico v.
Hoffman, 324 U.S. 30, 35-36 (1945); Ex parte Peru, 318 U.S. 578, 587-89 (1943).
As was most fully articulated in 1952 in a letter from Jack Tate, Legal Adviser
to the State Department, to the Attorney General, the department's policy was
to render a suggestion of immunity only in those restricted instances in which
the acts of a friendly foreign state were of a public or sovereign nature (jure
imperii) rather than being simply private or commercial (jure gestionis). 26
Dep't State Bull. 984 (1952). The distinction between a state's public actions
and its private or commercial activities was found to be one that often was
easier to proclaim than to apply. The determination of the executive about what
constituted a public, as opposed to a private or commercial act, frequently was
subject to diplomatic rather than strictly legal considerations, thereby
resulting in suggestions of immunity that were not in conformity with the
policy articulated in the Tate letter. Moreover, even in those instances when
executive suggestions were not involved, there was a lack of uniform judicial
interpretation. 5 It is against this background that the Congress
considered and enacted the Foreign Sovereign Immunities Act of 1976. As is made clear both in the Act and in its
legislative history, one of its principal purposes was to reduce the foreign
policy implications of sovereign immunity determinations and assure litigants
that such crucial decisions are made on purely legal grounds, an aim that was
to be accomplished by transferring responsibility for such a decision from the
executive branch to the judiciary. 28 U.S.C. § 1602 (1976); H.R. Rep. No. 94-1487,
94th Cong., 2d Sess. 7 (1976), reprinted in (1976) U.S. Code Cong. & Admin.
News, p.6604; S. Rep. No. 94-1310, 94th Cong., 2d Sess. 9 (1976). In addition,
the Act itself is designed to codify the restrictive principle of sovereign
immunity that makes a foreign state amenable to suit for the consequences of
its commercial or private, as opposed to public acts. Id. In considering the related questions of
jurisdiction and sovereign immunity under the Act, one court has observed: The Act's central feature is its specification
of categories of actions for which foreign states are not entitled to claim
{488 F.Supp. 665, 671} the sovereign immunity from American court jurisdiction
otherwise granted to such states. These exceptions are contained not in the sections
of the Act which describe the grounds on which jurisdiction may be obtained,
however, but are phrased as substantive acts for which foreign states may be
found liable by American courts. This effects an identity between substance and
procedure in the Act which means that a court faced with a claim of immunity
from jurisdiction must engage ultimately in a close examination of the
underlying cause of action in order to decide whether the plaintiff may obtain
jurisdiction over the defendant. Yessenin-Volpin v. Novosti Press Agency, 443
F.Supp. 849, 851 (S.D.N.Y. 1978). In the instant action, relying on section
1605(a)(5) as their basis for combatting any assertion of sovereign immunity,
plaintiffs have set forth several tortious causes of action arising under
international law, the common law, the Constitution, and legislative
enactments, pp. 666-667 supra, all of which are alleged to spring from the
deaths of Orlando Letelier and Ronni Moffitt. The Republic of Chile, while vigorously
contending that it was in no way involved in the events that resulted in the
two deaths, further asserts that, even if it were, the Court has no subject
matter jurisdiction in that it is entitled to immunity under the Act, which
does not cover political assassinations because of their public, governmental
character. As supportive of its conclusion that political,
tortious acts of a government are to be excluded, the Republic of Chile makes
reference to the reports of the House and the Senate Judiciary Committees with
regard to the Act, in which it was stated: Section 1605(a)(5) is directed primarily at the
problem of traffic accidents but is cast in general terms as applying to all
tort actions for money damages. ... The purpose of section 1605(a)(5) is to
permit the victim of a traffic accident or other noncommercial tort to maintain
an action against a foreign state to the extent otherwise provided by law. H.R. Rep. No. 94-1487, supra at 20-21; S. Rep.
No. 94-1310, supra at 20-21. It is clear from these passages, the Chilean
government asserts, that the intent of Congress was to include only private
torts like automobile accidents within the exclusion from immunity embodied in
section 1605(a)(5). Prominently absent from defendant's analysis,
however, is the initial step in any endeavor at statutory interpretation: a
consideration of the words of the statute. See, e.g., Touche Ross & Co. v.
Redington, 442 U.S. 560, 568 (1979); American Trucking Associations v. United
States, 602 F.2d 444, 449-50 (D.C. Cir. 1966), cert. denied, 444 U.S. 991
(1979). Subject to the exclusion of these discretionary
acts defined in subsection (A) and the specific causes of action enumerated in
subsection (B), neither of which have been invoked by the Republic of Chile, by
the plain language of section 1605(a)(5) a foreign state is not entitled to
immunity from an action seeking money damages "for personal injury or death ...
caused by the tortious act or omission of that foreign state" or its officials
or employees. Nowhere is there an indication that the tortious acts to which
the Act makes reference are to only be those formerly classified as "private,"
thereby engrafting onto the statute, as the Republic of Chile would have the
Court do, the requirement that the character of a given tortious act be
judicially analyzed to determine whether it was of the type heretofore denoted
as jure gestionis or should be classified as jure imperii. Indeed, the other
provisions of the Act mandate that the Court not do so, for it is made clear
that the Act and the principles it sets forth in its specific provisions are
henceforth to govern all claims of sovereign immunity by foreign states. 28
U.S.C. §§ 1602, 1604 (1976). Although the unambiguous language of the Act
makes inquiry almost unnecessary, {488 F.Supp. 665, 672} further examination
reveals nothing in its legislative history that contradicts or qualifies its
plain meaning. The relative frequency of automobile accidents and their
potentially grave financial impact may have placed that problem foremost in the
minds of Congress, but the applicability of the Act was not so limited, for the
committees made it quite clear that the Act "is cast in general terms as
applying to all tort actions for money damages" so as to provide recompense for
"the victim of a traffic accident or other noncommercial tort." H.R. Rep. No.
94-1487, supra at 20-21 (emphasis supplied); S. Rep. No. 94-1310, supra at
20-21 (same). Further, any notion that the Congress wished the
courts to go outside the scheme promulgated by legislative action to determine
the extent to which the defense of sovereign immunity could be invoked is
foreclosed by the committee reports that not only state that "(t)his bill ...
sets forth the sole and exclusive standard to be used in resolving questions of
sovereign immunity raised by foreign states before Federal and State courts in
the United States," H.R. Rep. No. 94-1487, supra at 12 (emphasis supplied); S.
Rep. No. 94-1310, supra at 11 (same), but also provide that the burden of proof
shall be upon the foreign state to present evidence "that the plaintiff's claim
relates to a public act of the foreign state that is, an act not within the
exceptions in section 1605-1607," H.R. Rep. No. 94-1487, supra at 17 (emphasis
supplied); S. Rep. No. 94-1310, supra at 17 (same). Thus, it is apparent that the terms of section
1605(a)(5) set the sole standard under which any claim of sovereign immunity
must be examined. 6 {488 F.Supp.
665, 673} Examining then the specific terms of section
1605(a)(5), despite the Chilean failure to have addressed the issue, the Court
is called upon to consider whether either of the exceptions to liability for
tortious acts found in section 1605(a)(5) applies in this instance. It is
readily apparent, however, that the claims herein did not arise "out of
malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights," 28 U.S.C. § 1605(a)(5)(B)
(1976), and therefore only the exemption for claims "based upon the exercise or
performance or the failure to exercise or perform a discretionary function
regardless of whether the discretion be abused," id. § 1605(a)(5)(A), can be
applicable. As its language and the legislative history make
apparent, the discretionary act exemption of subsection (A) corresponds to the
discretionary act exception found in the Federal Tort Claims Act. H.R. Rep. No.
94-1487, supra at 21; S. Rep. No. 94-1310, supra at 20. Compare 28 U.S.C. §
1605(a)(5)(A) (1976) with id. § 2680(a). As defined by the United States
Supreme Court in interpreting the Federal Tort Claims Act, an act that is
discretionary is one in which "there is room for policy judgment and decision."
Dalehite v. United States, 346 U.S. 15, 36 (1953). Applying this definition to
the instant action, the question becomes, would the alleged determination of
the Chilean Republic to set into motion and assist in the precipitation of
those events that culminated in the deaths of Orlando Letelier and Ronni
Moffitt be of the kind in which there is "room for policy judgment and
decision." While it seems apparent that a decision
calculated to result in injury or death to a particular individual or
individuals, made for whatever reason, would be one most assuredly involving
policy judgment and decision and thus exempt as a discretionary act under
section 1605(a)(5)(A), that exception is not applicable to bar this suit. As it
has been recognized, there is no discretion to commit, or to have one's
officers or agents commit, an illegal act. Cruikshank v. United States, 431
F.Supp. 1355, 1359 (D. Hawaii 1977); see Hatahley v. United States, 351 U.S.
173, 181 (1956). Whatever policy options may exist for a foreign
country, it has no "discretion" to perpetrate conduct designed to result in the
assassination of an individual or individuals, action that is clearly contrary
to the precepts of humanity as recognized in both national and international
law. Accordingly there would be no "discretion" within the meaning of section
1605(a)(5)(A) to order or to aid in an assassination and were it to be
demonstrated that a foreign state has undertaken any such act in this country,
that foreign state could not be accorded sovereign immunity under subsection
(A) for any tort claims resulting from its conduct. As a consequence, the Republic of Chile cannot
claim sovereign immunity under the Foreign Sovereign Immunities Act for its
alleged involvement in the deaths of Orlando Letelier and Ronni Moffitt. Finally, the Republic of Chile seeks to invoke
the act of state doctrine to excuse itself from the jurisdiction of the Court.
As recognized by the Supreme Court in its recent decision in Alfred Dunhill of
London, Inc. v. Republic of Cuba, the traditional formulation of this principle
provides: Every sovereign State is bound to respect the
independence of every other sovereign State, and the courts of one country will
not sit in judgment on the acts of the government of another done within its
own territory. Redress of grievances by reason of such acts must be obtained
through the means open to be availed of by sovereign powers as between
themselves. {488 F.Supp. 665, 674} 425 U.S. 682, 691 n.7 (1976) (quoting Underhill
v. Hernandez, 168 U.S. 250, 252 (1897)). While again denying involvement in the deaths at
issue here, the Chilean Republic asserts that those acts of which it is accused
would be public ventures carried out within Chile itself and therefore entitled
to immunity under the act of state doctrine. Although the acts allegedly undertaken directly
by the Republic of Chile to obtain the death of Orlando Letelier may well have
been carried out entirely within that country, that circumstance alone will not
allow it to absolve itself under the act of state doctrine if the actions of
its alleged agents resulted in tortious injury in this country. To hold
otherwise would totally emasculate the purpose and effectiveness of the Foreign
Sovereign Immunities Act by permitting a foreign state to reimpose the so
recently supplanted framework of sovereign immunity as defined prior to the Act
"'through the back door, under the guise of the act of state doctrine.'" H.R.
Rep. No. 94-1487, supra at 20 n.1 (quoting Amicus Brief of United States at 41,
Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976)); S.
Rep. No. 94-1310, supra at 19 n.1 (same). Accordingly, the Court having subject matter
jurisdiction to entertain this action, a status hearing will be held on March
18, 1980, at 10:00 a.m. at which time argument will be heard on plaintiffs'
pending motion to compel defendant Townley to answer interrogatories and a time
will be set for a hearing, pursuant to 28 U.S.C. § 1608(e), to establish
evidence satisfactory to the Court to permit the entry of a default judgment
against the Republic of Chile. Footnotes 1 Just one
week prior to the institution of this civil proceeding, a criminal action
involving the deaths of former Chilean ambassador Letelier and Mrs. Moffitt was
commenced in the United States District Court for the District of Columbia with
the entry of an indictment naming all the individual defendants in this suit,
except Michael Vernon Townley. United States v. Sepulveda, Crim. No. 78-0367
(D.D.C. filed Aug. 1, 1978). Of the eight individuals indicted, only Alvin Ross
Diaz, Ignacio Novo Sampol, and Guillermo Novo Sampol, all members of the Cuban
National Movement (CNM), were brought to trial. After a lengthy proceeding on
charges including conspiracy to murder a foreign official, murder of a foreign
official, and first degree murder, all three were convicted and given
substantial sentences. Each of them has noted an appeal. United States v.
Sampol, No. 79-1541 (D.C. Cir. filed Apr. 2, 1979); United States v. Diaz, No.
79-1542 (D.C. Cir. filed Apr. 2, 1979); United States v. Sampol, No. 79-1808
(D.C. Cir. filed Mar. 23, 1979). With regard to the remaining defendants, CNM
members Virgilio Paz Romero and Jose Dionisio Suarez Esquivel are fugitives
sought by the Federal Bureau of Investigation, while the efforts of the United
States to extradite Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, and
Armando Fernandez Larios have, up to this point, been without success. As to
Michael Vernon Townley, an American citizen and self-confessed CNI-DINA agent
who testified at the criminal trial as a government witness concerning his
substantial involvement in the killings, he entered a plea of guilty on August
11, 1978, to a charge of conspiracy to kill a foreign official and is now
serving his sentence under the custody of the United States Department of
Justice Witness Protection Program. 2 For a
plaintiff to be able to secure a default judgment under the Foreign Sovereign
Immunities Act, he must establish his claim or right to relief by evidence
satisfactory to the court, 28 U.S.C. § 1608(e) (1976), the same requirement
applicable to default judgments against the United States under Federal Rule of
Civil Procedure 55(e), H.R. Rep. No. 94-1487, 94th Cong., 2d Sess. 25-26
(1976), reprinted in (1976) U.S. Code Cong. & Admin. News, p.6604; S. Rep.
No. 94-1310, 94th Cong., 2d Sess. 25 (1976). 3 As
constitutional authority for the enactment of the Foreign Sovereign Immunities
Act, Congress relied on its power to prescribe the jurisdiction of the federal
courts, U.S. Const. art. I, § 8, cl. 9; id. art. III, § 1, to define offenses
against the "Law of Nations," id. art. I, § 8, cl. 10, to regulate commerce
among foreign nations, id. § 8, cl. 3, and "to make all laws which shall be
necessary and proper to carry into Execution ... all ... Powers vested ... in
the Government of the United States," including the judicial power of the
United States over controversies between "a State, or the Citizens thereof, and
foreign States," id. § 8, cl. 18; id. art. III, § 2, cl. 1. H.R. Rep. No.
94-1487, supra at 12; S. Rep. No. 94-1310, supra at 12. The Republic of Chile
has not challenged either the authority of Congress to pass legislation
governing grants of sovereign immunity or its authority to enact any of the
specific provisions of the Foreign Sovereign Immunities Act. 4 In addressing the question of the
procedure for raising the defense of sovereign immunity, both the House and
Senate committee reports concerning the Foreign Sovereign Immunities Act of
1976 state that "sovereign immunity is an affirmative defense which must be
specially pleaded." H.R. Rep. No. 94-1487, supra at 17; S. Rep. No. 94-1310,
supra at 17. In this instance the Republic of Chile, while not having entered a
formal appearance through counsel or having filed a responsive pleading through
an accredited representative, has had the Department of State transmit to the
Court a diplomatic note from the Ministry of Foreign Affairs and a note from
the Embassy of Chile in which the issues of the Court's jurisdiction and
Chile's sovereign immunity have been discussed. The extent to which the
affirmative defense of sovereign immunity can be raised by way of such a
procedure rather than by a formal appearance or the filing of a pleading is one
that the Court need not answer definitively, see generally, however, Ex parte
Muir, 254 U.S. 522, 532-33 (1921); Puente v. Spanish Nat. State, 116 F.2d 43,
44 (2d Cir. 1940), cert. denied, 314 U.S. 627 (1941); 2A Moore's Federal
Practice ¶ 8.28, at 8-270 to 275 (2d ed. 1979) (affirmative defense can be
raised by motion to dismiss or motion for summary judgment); Restatement
(Second) of Foreign Relations Law of the United States § 71, Comment b (1965),
for even assuming it has been pleaded properly, the Court still has subject
matter jurisdiction for the reasons discussed infra. 5 The
judicial attempt at definition that is perhaps most widely recognized is that
of the United States Court of Appeals for the Second Circuit in Victory Transport,
Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354, 360
(2d Cir. 1964), cert. denied, 381 U.S. 934 (1965), in which the court
classified public acts as those involving (1) internal administration, such as
expulsion of an alien; (2) legislation, such as nationalization; (3) the armed
forces; (4) diplomatic activity; and (5) public loans. For more detailed discussions of the principle
of sovereign immunity as it existed prior to the Foreign Sovereign Immunities
Act, see generally Victory Transport, Inc. v. Comisaria General de
Abastecimientos y Transportes, supra, 336 F.2d at 357-60; H.R. Rep. No.
94-1487, supra at 8-9; S. Rep. No. 94-1310, supra at 9-10; Note, Sovereign
Immunity in the Supreme Court: Using the Certiorari Process to Avoid
Decisionmaking, 16 Va. J. Int'l L. 903, 904-09, 920-24 (1976). See also Restatement
(Second) of Foreign Relations Law of the United States, supra, §§ 63-72. 6 The
Republic of Chile has cited several cases decided since the passage of the
Foreign Sovereign Immunities Act that it contends establish foreign states under
the Act are to be granted immunity for any tortious act committed by a
sovereign entity while acting in its public capacity. The Court finds these
cases inapposite. In Carey v. National Oil Corp., 453 F.Supp.
1097, 1102 (S.D.N.Y. 1978), aff'd on other grounds, 592 F.2d 673 (2d Cir. 1979)
(per curiam), while indicating in what could be classified as dictum that the
alleged acts of a foreign state to induce a breach of contract were sovereign
and therefore not within the exceptions to immunity in the Act, the court found
that at best the supposed actions of the foreign state would state a claim for
tortious interference with contract rights, which was exempted specifically by
section 1605(a)(5)(B). Likewise in Yessenin-Volpin v. Novosti Press
Agency, 443 F.Supp. 849, 855 (S.D.N.Y. 1978), the court found it had no
jurisdiction to entertain a claim of libel as a noncommercial tort under
section 1605(a)(5) because such a cause of action was exempted by the terms of
subsection (B). Thus, in each of these instances, the tort action in question
was barred not by classification of the actions in question as public or
private, but rather because Congress had exempted them from the broad category
of noncommercial torts for which a foreign state cannot claim immunity. Reference is also made by the Chilean Republic
to Gittler v. German Information Center, 95 Misc.2d 788, 408 N.Y.S.2d 600 (Sup.
Ct. 1978). In that case, suit was brought to recover unpaid compensation and
benefits allegedly due an American citizen for his work on documentary films
commissioned by an entity of the West German government and designed to foster
cultural relations between Germany and the United States. Relying on the
decision of the United States Court of Appeals for the Second Circuit in Heaney
v. Government of Spain, 445 F.2d 501 (2d Cir. 1971), in which the court
determined that a government's contract for public relations work designed to
discredit another nation was a public or sovereign act entitling it to immunity
from any suit for breach of that contract, the New York Supreme Court in
Gittler found the agreement in question to be one involving sovereign action of
West Germany, thereby precluding any suit to enforce its terms. 408 N.Y.S.2d at
601. Although it is unclear whether the court in
Gittler made its finding of immunity pursuant to the Foreign Sovereign
Immunities Act, that Act having become effective after the date of the alleged
breach of contract and after suit was filed, nonetheless to the extent that the
case can be so read, this Court declines to follow its analysis of the immunity
issue. It is made evident both in the Act and in its legislative history that
any decision to grant immunity to a foreign state is dependent on the
provisions of the Act and thus the case law on the subject of sovereign
immunity as it analyzed the distinctions between commercial or private acts and
a state's public actions is persuasive only to the extent those interpretations
can be deemed to be in conformity with the exceptions to immunity as set forth
in the Act. Compare H.R. Rep. No. 94-1487, supra at 16 (contract of foreign
government to buy provisions or equipment for armed forces or to construct
government building is commercial activity under Act) and S. Rep. No. 94-1310,
supra at 15-16 (same) with Heaney v. Government of Spain, supra, 445 F.2d at
504 (dictum) (foreign government's contract to purchase bullets or erect
fortifications for army is sovereign rather than commercial or private act) and
Victory Transport, Inc. v. Comisaria General de Abastecimientos y Transportes,
supra, 336 F.2d at 360 (dictum) (purchase of shoes or bullets for army,
erection of fortifications, or rental of house for embassy not private acts).
See also Broadbent v. Organization of American States, No. 78-1465 (D.C. Cir.
Jan. 8, 1980). _____________ Counsel: Michael E. Tigar, Lynne A. Bernabei, Washington,
D.C., for plaintiffs. |